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Appellate Legal Victories for Immigrants' Rights at HIRC

March 3, 2009

Students in the Harvard Immigration and Refugee Clinic were part of two major legal victories for immigrants' rights this month, including one in the U.S. Supreme Court.  In both cases, the clinical students--under the guidance of HIRC director Deborah Anker and Matt Muller, lecturer at law and clinical advocacy fellow--drafted amici briefs in support of refugees seeking to remain in the U.S.

In Negusie v. Holder, the U.S. Supreme Court on March 3 held 8-1 that the Board of Immigration Appeals (BIA) was incorrect in finding there was no coercion exception in the Immigration and Nationality Act's bar against providing asylum to anyone who assisted in the persecution of others based on their race, religion, or other factor.  The petitioner, a dual citizen of Ethiopia and Eritrea, was forced to act a as a guard in a prison in Eritrea but escaped to the U.S. by hiding in a container on a ship.  The BIA denied his application for asylum, ruling that his motivation and intent were irrelevant to his actions in persecuting others.  But the high court held the board erred and remanded the case to the BIA for reconsideration.  HIRC alumnus and WilmerHale partner Mark C. Fleming '97 also worked on the amicus brief on a pro se basis.

"It was a really unique opportunity for me to be able to work on a Supreme Court case," says Juan Valdivieso '09, who helped write HIRC's amicus brief in Negusie.  "The clinical program allows you to address asylum law in all its different facts, from hearing before an administrative law judge all the way to the Supreme Court."

In the other case, Ndayshimiye et al. v Attorney General of the U.S., the HIRC amicus brief was cited by the Third Circuit Court of Appeals in its February decision to overrule another BIA ruling.  A Rwandan refugee who had come to the U.S. on a business trip sought asylum argued he could not return home safely because others had taken his land, not just for personal profit but because they were his ethnic enemies.  The Board interpreted Real ID Act to require that asylum should not be granted in situations of "mix motives" on the part of persecutors, even though previous board and court decisions extended protection when a persecutor was motivated "in significant part" by a protected ground, such as ethnic differences.

"Our brief pushed back against this idea, using both international law and an explanation of the real world and how these things work," says Muller.  "We also played up the legislative history of drafting changes...and the Third Circuit agreed with us."

Even though the petitioner lost on other grounds, Anker calls the decision "very, very important," adding, "This is one of the first circuit decisions that clearly says that Real ID Act requires the board to apply a mixed motives standard because that's what the congressional language dictates."  HIRC clinical student Melanie Conroy '07 worked on the brief, which was submitted in November 2007.

Last modified: February 01, 2012

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